Home Office cracking down on entry of amateur cricketers

The Home Office appears to be cracking down on the entry of foreign amateur cricketers and sportspeople. Emails released by the Home Office under a Freedom of Information request suggest that unpaid amateur cricketers who might in future wish to earn a living from their sport or even any under 17 player who has played at state, province, territory or national team level, paid or unpaid, should be barred from entry to play as an amateur in the UK “so as to protect opportunities for resident sportspeople who are seeking to make a current or future liivng in that sport” and “prevent the displacement of settled workers.”

The same approach is said to apply to women players as well as men, despite the lower earnings potential for women cricketers.

Correspondence between Home Office officials and the England and Wales Cricket Board reveal several examples of Home Office officials discouraging cricket clubs and an academy from sponsoring the entry of unpaid young players to develop their skills or play in amateur tournaments.

New guidance issued in June to Home Office officials and Entry Clearance Officers considerably expands the material on sports visitors, adding specific references to the definition of “amateur” and “professional”:

An “Amateur” is a person who engages in a sport or creative activity solely for personal enjoyment and who is not seeking to derive a living from the activity. This also includes a person playing or coaching in a charity game.

A “Professional Sportsperson”, is someone, whether paid or unpaid, who:

is providing services as a sportsperson, playing or coaching in any capacity, at a professional or semi-professional level of sport; or

being a person who currently derives, who has in the past derived or seeks in the future to derive, a living from playing or coaching, is providing services as a sportsperson or coach at any level of sport, unless they are doing so as an “Amateur”.

The new guidance suggests that examples of”professional” sportspeople who would not be allowed entry under the visitor rules would include:

players who have played for professional or semi-professional clubs at junior levels, which may include under 17s and under 19s teams, whether they were paid or not

coaches of junior teams of professional or semi-professional clubs, whether they were paid or not

former professional sportspeople who have formally reverted to amateur status according to the rules of their sport

players who have played representative sport for their state, country or territory, whether they were paid or not

There is some doubt about whether the guidance is legally correct. It is certainly confused, given that if a person falls under the definition of “amateur” that person is immediately excluded from being a “professional” and being an amateur simply requires pursuing a sport solely for personal enjoyment and not seeking to derive a living from the activity.

Surely all sportspeople pursue their sport for personal enjoyment? And what amounts to a “living”? Generating some money but not enough to live on would not seem to qualify. If we look at the new examples given, surely all of them meet the definition of “amateur” and are therefore not “professionals”?

Where a person is refused a visit visa on the basis that he or she is a professional sportsperson rather than an amateur, the only alternative visa available for entry would be under Tier 2 of the Points Based System. Very few local sports clubs will be able to obtain a sponsorship licence because of the cost and bureaucracy involved, and amateur clubs certainly will not. Further, the criteria for entry as a sportsperson under Tier 2 requires

It is impossible to understand the purpose of this crackdown. What is the harm the Home Office seeks to prevent? If the sportspeople in question

You can compare the latest version of the relevant section of the guidance, version 6.0, to the previous version, version 5.0, below:

Version 5.0Version 6.0

Sport

See Appendix 3 paragraphs 19 – 20 of the visitor rules.

You must consider whether the individual is being employed as a professional sports person by a team based in the UK. If that is the case, you should refuse and inform the applicant to consider applying for a work visa under Tiers 2 or 5 of the points- based system.

Sportspersons are able to take part in tournaments or events, however if the applicant intends to participate in a professional domestic championship or league, including where one or more of the fixtures/rounds takes place outside the UK, this is classed as employment (paid or unpaid).

Technical or support staff for sports persons must be attending the same event as the sports person and be employed to work for them overseas. Examples include:

physiotherapists

coaches

dieticians

bodyguards

press officers

polo grooms but only when they are accompanying a polo player and not intending to base themselves in the UK for the sporting season to take up employment in the stables

Sports officials (for example lines people, umpires) do not have to, and in many cases will not, be employed by the sports person to work for them overseas. They must be attending the same event as the sports person and support their activities during that event.

Sport

See: appendix 3 paragraphs 19 to 20 of appendix V: visitor rules.

You must consider whether the individual is being employed as a professional sports person by a team based in the UK. If that is the case, you should refuse and inform the applicant to consider applying for a work visa under Tiers 2 or 5 of the points- based system.

Sportspersons are able to take part in tournaments or events, however if the applicant intends to participate in a professional domestic championship or league, including where one or more of the fixtures/ rounds takes place outside the UK, this is classed as employment (paid or unpaid).

Amateur sportspersons are able to join an amateur team or club to gain experience in a particular sport, provided they are an amateur in that sport. You must consider whether the individual is actually an amateur or not, as well as the amateur status of the team/ club. An individual is not permitted to join an amateur team/ club as a visitor if they are a professional sportsperson or the team/ club is not an amateur one and you must refuse the application.

It should be possible to confirm the team’s/ club’s status on their website or on the website of the sport’s governing body. For example the England and Wales Cricket Board for cricket or on the websites of the leagues, for example the English, Scottish, Welsh and Northern Irish football league websites.

The definition of ‘amateur’ and ‘professional’ sportsperson for immigration purposes is in the introduction section of the Immigration Rules:

An “Amateur” is a person who engages in a sport or creative activity solely for personal enjoyment and who is not seeking to derive a living from the activity. This also includes a person playing or coaching in a charity game.

A “Professional Sportsperson”, is someone, whether paid or unpaid, who:

is providing services as a sportsperson, playing or coaching in any capacity, at a professional or semi-professional level of sport; or

being a person who currently derives, who has in the past derived or seeks in the future to derive, a living from playing or coaching, is providing services as a sportsperson or coach at any level of sport, unless they are doing so as an “Amateur”.

Some examples of those likely to be included in the definition of ‘professional sportsperson’ are:

players who have played for professional or semi-professional clubs at junior levels, which may include under 17s and under 19s teams, whether they were paid or not

coaches of junior teams of professional or semi-professional clubs, whether they were paid or not

former professional sportspeople who have formally reverted to amateur status according to the rules of their sport

players who have played representative sport for their state, country or territory, whether they were paid or not

Technical or support staff for sportspersons must be attending the same event as the sportsperson and be employed to work for them overseas. Examples include:

physiotherapists

coaches

dieticians

bodyguards

press officers

polo grooms but only when they are accompanying a polo player and notintending to base themselves in the UK for the sporting season to take up employment in the stables

Sports officials (for example lines people, umpires) do not have to, and in many cases will not, be employed by the sportsperson to work for them overseas. They must be attending the same event as the sportsperson and support their activities during that event.

I recently drafted an opinion on a case involving a person asserting that they are an amateur sportsperson who plays as an amateur in the UK for an amateur club but who has been paid for play abroad. Is such a person an amateur or a professional? If not an amateur, there is no route for them to enter the UK to play for a club because to meet the Tier 2 Sportsperson rules a sportsperson must play at the highest level internationally and the whole process costs a small fortune.

Cases like these also raise interesting questions about the drafting of Appendix V and whether a visitor may enter the UK to pursue an activity that is not explicitly listed in the “permissive activities” as well as some other listed activity, such as visiting family or friends friends in the UK. Generally the common law approach (and the approach to visit visas historically, under the old rules) is that a person can do whatever he or she likes as long as it is not explicitly prohibited by law. Appendix V seems to have been intended to kill this off but it is not completely clear that the drafting succeeds in achieving this.

Apart from anything, as long as a person seeking to play a sport and not be paid for it also wants to visit friends and family, the latter is a permitted activity and the person therefore fulfils that requirement.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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